[🇵🇰] Supreme Court (Practice and Procedure), Bill 2023

[Ghazi52]

Supreme Court (Practice and Procedure), Bill 2023,

CJP does not have powers to form special benches​

Haseeb Bhatti
March 29, 2023

Justice Qazi Faez Isa and Justice Aminuddin Khan, in a detailed order of the Supreme Court on Wednesday, noted that the chief justice of Pakistan (CJP) does not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they are legislated upon.

The two judges passed the order in a case pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.

The case was heard by the aforesaid judges as well as Justice Shahid Waheed — who dissented from their verdict and will write his separate opinion.

The order, a copy of which is available with Dawn.com, first questioned why the special bench comprising judges from three different benches was formed to hear the case. “The question arises, why couldn’t an existing regular bench hear this case? The record does not disclose the reason for the constitution of this special bench, nor do we know,” the order reads.

“Neither the Constitution nor the rules grant to the chief justice (or the registrar) the power to make special benches, select judges who will be on these benches and decide the cases which they will hear.

“There is also no additional, incidental, ancillary or residual power with the chief justice which could be used to do this. Yet, unfortunately, this is being done and sometimes with grave consequences. Important aspects with which arose out of Article 184(3) of the Constitution were decided with significant consequences on the economy, politics and on other aspects of the lives of Pakistanis.”

At the order’s outset, the two judges said the Supreme Court Rules (1980) neither permit nor envisage special benches, adding that they did not know why a special bench was constituted for hearing their case and asked why a regular existing bench could not hear it.

Criticising special benches, the order said they provide detractors with the opportunity to claim the bench was “tailor-made to give a particular decision”.

“When benches are tailored and judges of a particular understanding or inclination are placed together to hear a particular case then doubts, suspicion and misgivings arise. A decision from an adjudicatory process which is perceived to be structured to obtain a particular decision invariably results in severe criticism.

“The matter assumes criticality when objections taken on the constitution of special benches and requests made for hearing by the full court are not attended to and no order disposing of such objections and requests is passed,” the order reads.

Postpones Article 184(3) cases​

Regarding Article 184-3 (matter of public importance) of the Constitution, the order highlighted that it had three categories of cases: a formal application filed for enforcement of fundamental rights, a suo motu notice taken by the apex court and cases of “immense constitutional importance and significance”.

The two judges said that Order 25 of the Supreme Court Rules (1980) only catered to the first category of cases with no procedure ascribed for the second and third categories.

“The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. The rules also do not provide how to attend to the following matters: how such cases be listed for hearing, how bench/benches to hear such cases be constituted and how judges hearing them are selected.”

The order said the apex court, comprising the CJP and other Supreme Court judges, was empowered to make rules on the above matters and the Constitution “does not grant to the chief justice unilateral and arbitrary power to decide the above matters”.

The two judges said the CJP “cannot substitute his personal wisdom with that of the Constitution” and collective determination by the CJP and other apex court judges cannot also be assumed by an individual.

“The interest of citizens therefore will be best served to postpone the hearing of this case and of all other cases under Article 184(3) of the Constitution till the matters noted herein above are first attended to by making requisite rules in terms of Article 191 of the Constitution.”

Pemra ban on judicial criticism​

The two judges also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, and criticised it.

The judges noted that the judiciary would be flawed if it was not “open to constructive criticism”, the people’s feedback could help to identify shortcomings and constructive criticism served the judiciary’s interest.

They termed the Pemra ban as a “gagging order” and said no reason was disclosed for its issuance. The order added that the “unsolicited media-gagging order brings the judiciary into disrespect and disrepute as citizens will assume that it has been issued on the direction of judges with a view to cover discrepancies, illegalities and/or blemishes.”

In a further damning indictment of the ban, the judges said: “Pemra’s complete prohibition to criticise judges offends the Constitution, law, morality and Islam.”

Growing debate over CJP’s powers​

The detailed verdict comes two days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court had called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.

Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.

Earlier today, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity.

Notably, the bill legislated regarding some of the issues raised by Justice Isa and Khan about Article 184(3).

Regarding the constitution of benches, the bill passed by the National Assembly today after amendments states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the above-mentioned committee.

“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.


Order postponement of all hearings based on suo motu notices and cases of constitutional significance until they are legislated upon.
www.dawn.com

 

[Ghazi52]

Reform package of dreams tainted by ‘bad timing’​

Syed Irfan Raza | Malik Asad
March 30, 2023

The bill aimed at curtailing the powers of the chief justice of Pakistan (CJP) may have sailed through the National Assembly, but it has generated a new controversy as timing of this legislation is being called into question; despite the fact that such reforms in the Supreme Court’s rules have been a dream of nearly all mainstream political parties in the country.

Not only the parties in the ruling alliance such as the PPP and PML-N, but even the PTI had plans to undertake comprehensive judicial reforms to address key issues, such as the appointment of judges, powers of suo motu, formation of benches. However, they were either reluctant or unable to do so in the past, when they held power.

Now, all eyes are on the Supreme Court, waiting to see how it will take the new legislation pertaining to its own domain — will it be acceptable to the court or will it adopt a more or less similar course of action through subordinate rules to put its own house in order.

The legal fraternity, however, seems divided on the proposed legislation.

Under the bill, the CJP has been deprived of his power to take suo motu action in an individual capacity, as well as his discretion over the formation of benches. The bill has proposed a committee consisting of three senior judges, including the CJP, to decide both matters.

One of the most significant aspects of the bill is that it has given, for the first time, a right of appeal to parties involved in suo motu cases.

But while the bill tabled by Minister for Law and Justice Azam Nazeer Tarar was welcomed by the ruling alliance, it was strongly rejected by the main opposition PTI, mainly because of its timing.

PPP Chairman Bilawal Bhutto-Zardari, speaking on the floor of the National Assembly on Wednesday, said that clipping the CJP’s powers on suo motu was a part of the Charter of Democracy, inked by the PPP and the PML-N in 2006, in addition to being suggested in 18th amendment.

Every party’s dream

Another PPP leader, Farhatullah Babar, told Dawn that although both parties had agreed upon judicial reforms in the CoD, at that time PML-N supremo Nawaz Sharif was reluctant to implement them as he was of the view that it could be considered later in parliament.

He said the PPP had demanded more, saying that there must a constitutional court in the SC which would only deal with cases of a constitutional nature.

Referring to Article 191 of the Constitution, Mr Babar said if the apex court did not make the much needed changes, the government could make the laws on its own.

Also speaking on the floor of the house on Wednesday, Defence Minister Khawaja Asif said that during the movement of the “restoration of judiciary” — when the PPP was in power — his party wanted to table a bill regarding judicial reforms, but the judiciary at that time was not ready for it.

PTI leader Fawad Chaudhry said that transparency in appointment of judges, use of suo motu powers and formation of benches was also addressed in his party’s proposed judicial reforms. “The main objection [we have now] is that the timing of the legislation only suits the rulers and does not serve the purpose of reforms,” he added.

“The present National Assembly, with an opposition leader like Raja Riaz, is illegitimate and thus has no moral authority to pass such legislation. The judicial reforms we have proposed should be discussed in the next parliament,” he added.

Mr Chaudhry said the right to appeal provided in the law would only benefit Nawaz Sharif — who was disqualified in the Panama Papers case, initiated under Article 184(3) of the Constitution.

Under normal circumstances, suo motu jurisdiction is invoked by the CJP alone and not by any other judge. However, the stance of some apex court judges including Justice Qazi Faez Isa, Justice Yahya Afridi, Justice Syed Mansoor Ali Shah and Justice Athar Minallah remained different, as they think that it should be a collective decision.

No need for an amendment?

Sources in the judicial bureaucracy said there was no need to amend the Constitution through a two-thirds majority, as the current legislation was aimed at amending the rules of the apex court and not Article 184(3) of the Constitution, from which the court derives its power of suo motu.

The rules are subservient to the Constitution; the government approves the rules of procedures of constitutional bodies and it is settled law that the authority that passed an order can undo it. The Supreme Court in a number of judgements has endorsed this dictum, sources said.

They said that judicial scrutiny of the law was always a possibility and the Supreme Court or even the high courts of the country had previously set aside a number of acts of parliament.

For example, the Islamabad High Court (IHC) partially struck down Section 20 of Prevention of Electronic Crimes Act (Peca), and last year it also set aside a presidential ordinance on local governments.

The apex court had also entertained petitions against the 18th Amendment when parliament changed Article 175 of the Constitution that deals with the appointment of judges in the superior courts and gave equal share to the Parliament in judicial appointments.

The government at the time, in order to save the legislation, introduced the 19th Amendment.

But former IHCBA president Shoaib Shaheen, who petitioned the Supreme Court to hold elections in Punjab and Khyber Pakhtunkhwa — a petition that was later merged into the suo motu proceedings — thinks otherwise.

Granting the right to appeal and streamlining suo motu proceedings would require a constitutional amendment, he said, adding that the government had introduced the “so-called reforms with mala fide intentions”.

Giving retrospective effect to the legislation shows that it has been designed to benefit certain politicians, he said, adding that these grounds were sufficient for the apex court of taking cognizance of the matter and strike it down, as was done with the Hasba bill in the past.

View of the judicial community

However, the Pakistan Bar Council (PBC), the apex legal regulatory body in the country, has an altogether different stance.

PBC Vice Chairman Haroon Rashid told Dawn that lawyers’ bodies from across the country were demanding streamlining of the discretionary powers of the CJP.

He said that while the Constitution was silent on this matter (Article 184 (3) vests the powers in the Supreme Court), the chief justice of Pakistan traditionally assumed this power, without proper regulations.

It is worth noting that former chief justice of Pakistan Asif Saeed Khan Khosa, in his full court reference on December 20, 2019, had said that “a working paper containing some proposed amendments to the Supreme Court Rules, 1980 so as to regulate suo motu exercise of this Court’s jurisdiction under Article 184(3) of the Constitution and to provide for an Intra-Court Appeal in that respect has been presented before the Full Court and the same is under active consideration.”

However, the full court of the apex court has yet to adopt these amendments.

According to Mr Rashid, the court can only set aside any legislation if it is deemed ultra vires to the Constitution or contradictory to the law.

In his opinion, the proposed legislation appears to be legal and in accordance with constitutional provisions.

Former Islamabad High Court Bar Association president Raja Inam Ameen Minhas also said that the act did not curtail any judicial power of the CJP, rather it has broadened the scope of suo motu proceedings.

He said the apex court was being criticised over excessive exercise of its suo motu jurisdiction as in the past, successive CJPs took notices on issues such as posting/transfers, sugar prices, construction and other peripheral issues.

He noted that certain segments of society, including the lawyers themselves, were not happy with the excessive suo motu notices, but now a voice for introspection was coming from within the Supreme Court, he added.

Mr Minhas was of the view that in case any petitioner challenged the law, the apex court could take up the petition in accordance with the new legislation.

Published in Dawn, March 30th, 2023

 

[Ghazi52]

Growing debate over CJP’s powers​

The dissenting note comes days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court called for revisiting the power of the “one-man show” enjoyed by the CJP, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.

Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.

On Wednesday, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity. Earlier today, the bill was passed by the Senate amid a protest by opposition.

The bill states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the above-mentioned committee.

“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.

On matters where the interpretation of the Constitution is required, the bill said the above-mentioned committee would compose a bench comprising no less than five apex court judges for the task.

Regarding appeals for any verdict by an apex court bench which exercised Article 184(3)‘s jurisdiction, the bill said that the appeal will lie within 30 days of the bench’s order to a larger Supreme Court bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.

The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, “an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing”.

The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and high courts.

 

[Ghazi52]

The same gents who were once joyous at the chief justice’s powers are now weeping tears of rage​

Asad Rahim Khan
April 1, 2023

It remains for the court to regulate itself.

AROUND this time a year ago, the Constitution was at risk. To frustrate the will of parliament, the deputy Speaker had thrown out its vote of no-confidence against a falling prime minister. But the Supreme Court stepped in: it took suo motu, undid the Speaker’s ruling, and restored the Assembly.

And the bells tolled loud and long: ‘We profusely thank the Supreme Court,’ said Shehbaz Sharif. PTI partisans, meanwhile, screamed blue murder about biased judges.

Amid all the noise though, there was little debate — with a few exceptions — about whether the opposition was justified in going for the vote. Or whether the chief justice should form a full court of his own accord. Or the nature of suo motu itself.

And perhaps rightly so: as senior counsel Feisal H. Naqvi quoted recently: “The main thing is to keep the main thing the main thing.”

It remains for the court to regulate itself.

The main thing last April was a prime minister trying to keep his enemies out of power by violating the Constitution. The Supreme Court stopped him. The main thing this April is a prime minister trying to keep his enemies out of power by violating the Constitution: delaying polls in two provinces set for 90 days. The Supreme Court stopped him again. But this time, the discussion is about everything but: from the regulation of suo motu to the formation of benches to the floods of 1988.

And yet what’s triggering this national nosebleed is clear: a widely despised minority government trying to prevent a specific outcome — elections within 90 days. The same gents once delirious with joy over the chief justice’s powers now weep tears of rage.

But none of the excuses trotted out so far pass muster. Consider a few: could the chief ministers dissolve their assemblies? (Yes, because they did it as provided for in the Constitution — one fresh from a vote of confidence in Punjab; the other with a thumping majority in KP.)

Then, could the chief justice take suo motu at all? (Yes, because of democracy’s destruction when the ECP broke the law, the governors shrugged, and all refused to obey the direction of the Lahore High Court’s Justice Jawad Hassan mandating 90 days.)

Then, what about a full court? (While there’s no harm, no law or precedent warrants one; nor is this a case of first impression, just the glaringly obvious: elections must be held in 90 days. The last full court we had was for whether the Constitution had a basic structure during the military courts case; it went on to deliver the silliest, most divided, and most incoherent plurality in history.)

As law students know, these are all Tamizuddin-esque sideshows. In ‘Tamizuddin’, justice Munir never actually decided the main thing: whether the assembly was sovereign. He twiddled his thumbs over technicalities instead, and wrecked democracy.

This time, however, it’s a different story: the same Bandial court that restored the Assembly the PTI government aborted, again upheld the law on March 1 — polls within 90 days.

Hence also the unity regime’s latest clownish attempt — à la Israel’s Netanyahu — to declaw the judiciary: a bill that snatches away the chief justice’s powers to take suo motu and form its benches, spreading it over a committee of three, with a fresh appeal that all our disqualified-for-lifers are rubbing their hands over.

But seeing as naughty thoughts shouldn’t be pegged to the legislature, let’s look at the law. Most legal eagles point to Article 191 in its favour, which reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”. The ‘law’ in question, they argue, being the new bill.
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Only, a five-member bench has already held the conferral, and exercise of suo motu isn’t a matter of procedure at all: “The tripartite categorisation of the judicial process,” held Justice Munib Akhtar, “…is not a matter of mere procedure; it is part of the very essence of the judicial power.”

The court has elsewhere reaffirmed the clause “subject to law” doesn’t mean “a statute can control or curtail the power conferred on the superior Courts by this Article.” It remains for the court to regulate itself.

Even otherwise, Item 55 of the Federal Legislative List excludes parliament from legislating on the court’s powers or jurisdiction (like grafting new floors of appeal on top what’s already in the supreme text). If PDM wants to interfere, it must amend the Constitution, not pass some bill at midnight under a banana tree.

Finally, a thought to actual practice: judges must themselves step away from samosa prices and policy. But the suo motu is the natural result of facing an all-out assault by Musharraf, and winning.

Diffusing that power by three, given these divides, renders it dysfunctional — the last hurdle protecting an independent judiciary. Then back we go to Quetta registries, to judges yanked by the hair.

There can be no more of that.

The writer is a barrister.

 

[Ghazi52]

Joint parliament session adopts Supreme Court amendment bill​

BR
April 10, 2023

The joint parliament session on Monday approved the Supreme Court (Practice and Procedure) Bill, 2023 aimed at curtailing the powers of the chief justice of Pakistan (CJP) — including the suo motu and the formation of benches — with a majority after the President Dr Arif Alvi returned the bill unsigned.

 

[Ghazi52]

Bill curtailing CJP’s powers challenged in SC, IHC​

The Newspaper's
April 12, 2023

ISLAMABAD: A day after a joint session of parliament adopted a bill seeking to curtail the powers of the chief justice of Pakistan, lawyers challenged the piece of legislation in the Supreme Court and the Islamabad High Court (IHC) on Tuesday through similar petitions.

The bill, which was earlier passed by both houses last month but was later returned by President Arif Alvi, was approved by the joint session with some amendments on Monday.

The petition in the Supreme Court was filed by Advocate Muhammad Shafay Munir, who challenged the legislation — the Supreme Court (Practice and Procedure) Bill 2023 — insisting that the plea had been filed to safeguard and secure the Constitution and independence of the judiciary.

In the petition, moved under Article 184(3) of the Constitution, Mr Munir contended that the petitioner believed in the supremacy of the Constitution, the rule of law, and independence of the judiciary and had always strived and struggled to protect the Constitution, independence of the judiciary and fundamental rights guaranteed under the Constitution.

The respondents named in the petition included the federal government through the secretaries of law, Senate and National Assembly.

A similar petition filed in the IHC contended that the bill had limited the CJP’s jurisdiction, as it made it mandatory for him to consult senior judges while forming benches.

It said that though the legal fraternity demanded the right of appeal against suo motu proceedings, it could have been made without curtailing CJP’s powers.

Both petitions requested the court to declare the Supreme Court (Practice and Procedure) Bill 2023 as illegal and void ab initio.

 

[Ghazi52]

SC larger bench to hear bill curtailing CJP’s powers on April 13​

Judges who recently wrote dissenting notes are not part of the eight-member larger bench

News Desk
April 12, 2023

An eight-member larger bench, led by Chief Justice of Pakistan Umar Ata Bandial, will hear petitions against the bill. PHOTO: FILE

An eight-member larger bench, led by Chief Justice of Pakistan Justice Umar Ata Bandial, will hear petitions against the Supreme Court (Practice and Procedure) Bill on April 13, Express News reported.

The development comes after the joint sitting of parliament passed the bill with amendments days after President Dr Arif Alvi returned the bill seeking to curtail the CJP's powers to initiate suo motu and constitute benches amid protest by the Pakistan Tehreek-e-Insaf senators.

The bench included Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazahir Naqvi, Justice Muhammad Ali Mazahar Naqvi, Justice Ayesha Malik, Justice Hasan Azhar Rizvi, and Justice Shahid Waheed. The judges who recently wrote dissenting notes are not part of the larger bench.

The bill was challenged in the apex court on Tuesday. One of the petition, filed by Advocate Muhammad Shafay Munir, claimed that the bill should be declared illegal and unconstitutional as only the top court had the authority to make its own rules. The petition made the federation of Pakistan through its secretary and the minister for law and justice as respondents among others.

Munir filed a Constitutional petition under Article 184(3) to “safeguard the Constitution and independence of [the] judiciary as safeguarded and fully secured in the preamble of the Constitution”.

The petition stated that during the proceedings of the Supreme Court’s suo motu hearing regarding the delay in Punjab polls, “the federal government along with [the] PDM (Pakistan Democratic Movement) started a vicious campaign in [the] general public and media to undermine the reputation and credibility of [the] honourable judges” of the SC, “especially” the CJP.

It continued that with its “agenda”, the incumbent government through the Ministry of Law proposed a bill for the curtailment of powers of the CJP in a “hurry without adopting the due course of law and in violation of Article 70 (1 and 4) of the Constitution”.

It stated that the bill was presented to the president for his assent but was sent for reconsideration by Alvi because it “was against the above-said Constitutional provisions”.

“Again, without taking into consideration and discussions on the objections by the president on [the] bill in question, the Parliament again in a hurry and without adopting the due course of law, beyond [the] powers of the Parliament, passed the bill on April 10 in a joint session”.

The petition contended that the Constitution had made it clear that the “independence of the judiciary” should be fully secured and the “Parliament has no powers to pass such an act to curtail the powers of [the] Supreme Court or its chief justice or the judges”.

It maintained that the president had “highlighted the aspects” that required reconsideration, but the Parliament failed to reconsider the same and passed the bill beyond its powers.

Outlining its grounds, the petition said that Article 191 of the Constitution stated that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court”.

It continued that the powers to make SC rules were “expressly entrusted” to the court itself and not to the Parliament.

Therefore, it stated, the Parliament did not have the powers to “enact any sort of legislation in relation to the powers and procedures of the Supreme Court”.

Citing the Fourth Schedule given under Article 70(4) of the Federal Legislative List’s item No55, the petition maintained that the Parliament only possessed powers in relation to the enlargement of the jurisdiction of the SC, but not to curtail its powers.
According to the petition, the SC while exercising powers under Article 191 of the Constitution, has already framed rules regulating its procedure and practice, and “Order X1 of Supreme Court Rules 1980 provides Constitution of Benches, and this power lies with the” CJP and these powers could not be curtailed through an act of the Parliament being beyond its jurisdiction and areas of enactment.

“The Supreme Court is established, empowered and regulated by the Constitutional Provisions given in articles 176 to 191, but not by any other law made by the Parliament and it is fully secured in the preamble, hence, if any curtailment of powers of the Supreme Court or its Chief Justice is required to be made, it could only be made through the Constitutional Amendments with two Third Majority but not by single majority by way of passing [the] bill in an ordinary manner”.

The petition prayed that the top court accepts the petition and declare the “impugned” bill as “ultra vires and unconstitutional and of no legal effect”.

 

[Ghazi52]

SC amendment bill: Top court issues notices to PM, president​

• The ruling coalition has rejected the SC bench set to hear the petitions

BR
April 13, 2023

The Supreme Court (SC) issued on Thursday notices to President Dr Arif Alvi, Prime Minister Shehbaz Sharif, the federation, bar councils and others as it took up several petitions against the Supreme Court (Practice and Procedure) Bill, 2023.

Chief Justice of Pakistan (CJP) Umar Ata Bandial presided over the eight-member bench to hear the case. The bench also includes Justice Ijazul Ahsan, Justice Mazahir Naqvi, Justice Munib Akhtar, Justice Ayesha Malik, Justice Muhammad Ali Mazhar, Justice Hasan Azhar Rizvi and Justice Shahid Waheed.

Meanwhile, the ruling coalition has rejected the SC bench set to hear the petitions, vowing to resist attempts to take away parliament’s authority and to interfere in its constitutional scope.


The ruling coalition leaders — which included members of the PML-N, PPP, MQM-P, ANP and other allied parties also held a presser today. Law Minister Azam Nazir Tarar said that the current situation was “very alarming”.

“Two senior judges have not been included in the bench that has been made after a pick and choose,” the Tarar added. He was referring to Justices Qazi Faez Isa and Sardar Tariq Masood, the senior-most judges after the chief justice.

Meanwhile, PPP leader Qamar Zaman Kaira urged the CJP to dissolve the bench, emphasising that the ruling parties would not tolerate its existence.

On April 10, the joint sitting of Parliament passed the Supreme Court (Practice and Procedure) Bill, 2023, with amendments days after President Dr Arif Alvi returned the bill seeking to curtail CJP’s powers to initiate suo motu and constitute benches amid protest by the Pakistan Tehreek-e-Insaf (PTI) senators.

Advocate Muhammad Shafay Munir on Tuesday filed a constitutional petition under Article 184(3) to “safeguard the Constitution and independence of (the) judiciary”, and cited the secretary Ministry of Law and Justice, the secretary Senate, and the secretary of National Assembly as respondents.

Meanwhile, another citizen Saeed Aftab Khokhar also submitted a petition to the Islamabad High Court (IHC) in this regard. The petitioners have prayed to the apex court to declare the “impugned” bill as ultra vires and unconstitutional and of no legal effect.

They said the impugned amendments were made in order to achieve the Government’s target which was to provide undue advantages to Nawaz Sharif, as well as, to sabotage and derail the fully announced and scheduled election process in two provinces of the country.

The petitioners said that the respondents have not acted fairly, reasonably or justly, hence, the matter at hand is subject to intervention by this Court whilst exercising its jurisdiction as the respondents are primarily responsible for ensuring the complete compliance of provisions of the constitution.

Meanwhile, the Pakistan Bar Council (PBC) has called on lawyers to boycott courts on Thursday to protest the formation of a “one-sided and controversial bench”. A late-night announcement by PBC Vice Chairman Haroonur Rashid and Executive Committee Vice Chairman Hassan Raza Pasha said that the CJP formed the bench in haste for hearing the petitions.

 

[Ghazi52]

SC puts on hold non-existent law in pre-emptive strike​

Nasir Iqbal
April 14, 2023

• Eight-judge bench justifies move by saying bill tinkering with court’s internal working was ‘set to become law’; fears meddling as soon as it is enacted

• Judges wonder if parliament has power to legislate the issue; AGP regrets court’s disregard for settled case law

ISLAMABAD: In an “anticipatory injunction”, the Supreme Court on Thursday barred the government from enforcing a proposed law targeting the suo motu powers of the top judge, saying the move would “prevent imminent apprehended danger that is irreparable” as soon as the bill becomes an act of parliament.

“The moment that the bill receives the assent of the president or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” said an interim order issued on Thursday evening by an eight-member bench.

“The court has great respect for parliament but it also has to examine if any constitutional deviation, violation or transgression has taken place while enacting the Supreme Court (Practice & Procedure) Bill, 2023,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial, who was heading the bench.

The bench comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi, and Justice Shahid Waheed observed that there appeared to be no authorisation under the Constitution that allows parliament to confer an appellate jurisdiction on the court, which is now being created.

The larger bench, which had taken up a set of three petitions challenging the proposed law — filed by Raja Amer Khan, Chaudhry Ghulam Hussain, and Muhammad Shafay Munir — also hinted at the possibility of appointing an amicus to assist the court.

The Supreme Court also issued notices to the respondents — principal secretaries to the president, prime minister, the federal government through the secretary law, the attorney general, Pakistan Bar Council, Supreme Court Bar Association, as well as to the political parties, who may appear through duly instructed counsel, if they desire.

Meanwhile, outside the courtroom, a large contingent of Rangers with anti-riot gear was deployed on the court premises alongside police to counter any untoward incident after a sizeable number of lawyers from the PTI camp also demonstrated for the second consecutive day, to show solidarity with the CJP.

Passed by a joint session of parliament earlier this week after it was returned by President Arif Alvi, the bill is once again awaiting

presidential assent to become an act of parliament. But even if the president does not sign the bill, the same would have been considered passed into law within ten days of its passage.

Independence of judiciary

The bench, which started proceedings slightly later than scheduled, first heard the arguments of Advocate Imtiaz Siddiqui, who declared that the bill was a “proposed act” since it would eventually become the act of the parliament by April 20.

In its order, the court said it was concerned with the independence of the judiciary, in particular the Supreme Court. Issues of public importance with regard to the enforcement of fundamental rights are involved in the case, which requires consideration and decision by the court, the order issued in the evening said.

Referring to the question of whether it would be appropriate to make any interim order in relation to the present matter, the court cited the 2010 Dr Mobashir Hassan (NRO) case. “In our view, the facts and circumstances presented here are extraordinary both in import and effect,” the order said, adding that prima facie, the contentions raised by the counsel disclosed that there was a “substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions”, in the guise of regulating the practice and procedure of this court and conferring upon it a jurisdiction that appears not permissible under any constitutional provision.

“Such intermeddling in the functioning of the Supreme Court, even on the most tentative assessment, will commence as soon the bill becomes the act,” the order explained. The order maintained that though the bill was not a law yet, it will have the force of law when the act comes into being. Therefore, the bench ruled, it can be considered and examined even at this stage.

It is possible even now, as the bill moves seamlessly through time towards becoming an act, to consider whether what parliament seeks to do passes muster constitutionally, the order said, adding that the bill prima facie seems to be open to question on the constitutional plane on several grounds which raise issues of a serious nature in relation to the independence of the judiciary.

Such independence is deeply rooted in the fabric of the constitution and forms an integral part of the structure of fundamental rights adding the bill, in clauses 2 to 4, seeks to regulate the manner in which causes or appeals before the court were to be heard, in particular, the benches that were to hear and decide the same.

Role of Article 191

On first impression, the bill appears to be premised on the approach that Article 191 purportedly sets up a hierarchy in relation to the practice and procedure of the court, the order said.

The regulation of the matters laid out in clauses 2 to 4 purports to trump anything contained in the Supreme Court rules, it said, adding that the bill seeks to reinforce this in clause 8 by giving overriding effect to its provisions over not only any “rules” but also any judgement of any court, including this court. Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary, the order feared.

“Any intrusion in the practice and procedure of the court, even on the most tentative of assessments, would appear to be inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be,” the order explained.

Prima facie, when the bill is examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence, the judgement said.

The bill also purports to confer a new appellate jurisdiction on the court however, it is highly doubtful whether parliament can do this since a right of appeal is not merely a matter of practice or procedure but is a substantive right, the order said.

It would therefore seem, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the Supreme Court itself or any “law’’ purported to be made by parliament.

AGP’s reaction

Separately, in a statement issued after the SC passed its interim order, Attorney General for Pakistan Mansoor Usman Awan said the way the case had proceeded was quite disappointing.

There was a clear impression that the case would be heard during next week, for which notices were being issued and recalled that a 12-member bench had held in the Aitzaz Ahsan case that the operation of a law cannot be suspended, and this judgment has consistently been followed by the courts.

However, he regretted how the court had disregarded settled jurisprudence in a most unusual manner.

Published in Dawn, April 14th, 2023

 

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SC directs AGP to submit parliamentary proceedings record in SC Practice, Procedure bill case​

The Frontier Post

ISLAMABAD (APP): The Supreme Court on Monday directed Attorney General for Pakistan (AGP) Mansoor Usman Awan to submit the record of parliamentary proceedings pertaining to the Supreme Court Practice and Procedure Bill case by Tuesday.

The eight-member larger bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed heard the case.

During the course of proceedings, AGP Mansoor Usman Awan said the Federal Government and the Pakistan Muslim League-Nawaz (PML-N) had filed separate petitions for the formation of a full court bench. The CJP asked the AGP whether he had submitted the record of parliamentary proceedings. The AGP replied that his office had contacted the National Assembly Speaker’s office formally and informally, and expected to receive the record by tomorrow (Tuesday).

He said only the full court could amend the rules of the apex court. It was all the more necessary as the law would also be directly applicable to the judges who were not hearing the case. Justice Naqvi asked whether such legislation had been passed in the past. The AGP replied that the President’s permission was required to make the rules until 1992.

Justice Naqvi asked how could such legislation be made in the presence of Article 91. The AGP said the President’s permission was withdrawn while the provision to make the rules in accordance with the Constitution and the law was retained. He stressed that the full court bench should be formed as such a case had never come in the past.

Justice Ayesha Malik said many cases filed in the court were first of their kind. The AGP said the full court did not hear all cases of judicial independence but many cases, including former CJP Iftikhar Chaudhry’s case were heard by the full court.

Justice Ayesha Malik asked how could the court regulate its proceedings at the request of the petitioner. Pakistan Muslim League-Nawaz counsel Barrister Salahuddin said the implementation of the law had been stopped through an injunction for the first time. He said a full court bench was constituted in the Inspectorate General of Prisons case.

Subsequently, the court ordered the Attorney General to submit the record of the parliamentary proceedings by tomorrow and adjourned the case for three weeks.

 

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AGP admits two SC laws overlap​

CJP welcomes suggestion to amend laws; says govt should consult judiciary when making laws about SC

Correspondent
June 01, 2023


While welcoming the state’s top law officer’s statement that there is a need to harmonize two new pieces of legislation with regard to judiciary, the top judge on Thursday said the government should consult with the Supreme Court when drafting laws that deal with the working of the court.

“There should not be unilateral legislation with regard to the judiciary. The government should hold consultation with the Supreme Court while making laws with regard to administrative affairs of the judiciary,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial.

He was leading an eight-judge larger bench hearing petitions filed against the Supreme Court (Practice and Procedure) Act, 2023.

On March 29, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which sought to reduce the CJP powers to take suo motu action and constitute benches. The Senate endorsed the bill a day later on March 30.

The president, however, returned the bill to the parliament without signing it. The eight-judge larger bench of the Supreme Court on April 13 “pre-emptively” stopped the enforcement of the bill while hearing a number of petitions filed against the legislation.

However, the bill became a law on April 21, despite the top court’s order.

As the bench resumed hearing of the petitions on Thursday, Attorney General for Pakistan (AGP) Mansoor Awan said there is some overlap between the Supreme Court (Practice and Procedure) Bill, 2023 and the Supreme Court (Review of Judgements and Orders) Bill, 2023.

“The sections dealing with filing of review petitions and hiring counsels are somewhat similar in both the law,” the AGP said, adding that the scope of the Supreme Court (Practice and Procedure) Act, 2023 is broader as it includes sections related to internal working of the SC.

“There is a need to resolve the question as to which law should be relied upon,” the AGP added.

The CJP welcomed the AGP’s “suggestion” to create harmony between the two laws, adding that it is encouraging that the government and the parliament are ready to amend the laws to harmonize them.

“Now there are two ways to create harmony among these two laws:

“The first way is that the government harmonizes the two laws on its own; the second way is that the parliament keeps making laws and we keep hearing the case. Let’s see who does it first. You take advice from the government. We will also review this suggestion,” he noted.

The counsel for the petition, Imtiaz Siddiqui, called attention to the fact that despite the court's orders, the parliament had not provided it with the details of its proceedings related to the Supreme Court (Practice and Procedure) Bill, 2023.

The CJP noted that the court came to know the decision of the parliament not to provide details of its proceedings to the court through newspapers.

“However, the parliament is probably unaware that all this record is available on its website,” he said, adding that the bench had also gathered that record from the webpage. The court later adjourned for one week.

SC (Review of Judgements and Orders) Act, 2023

The National Assembly on April 14 passed the Supreme Court (Review of Judgements and Orders) Bill, 2023, which was moved as a private member’s bill by MNA Shaza Fatima. The bill also received the seal of approval from the Senate—the upper house of parliament—on May 5.

The bill was sent for the approval of President Alvi, who on May 25 signed the act into law. On May 29, the Senate Secretariat issued its gazette notification which the AGP also submitted to the apex court.

This new law has enlarged the scope of review petitions, allowing some politicians including former premier Nawaz Sharif to file appeal against an SC order that resulted in his lifetime disqualification in July 2017

 

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CJP questions how practice and procedure law diminishes SC’s powers​

Dawn.com
October 3, 2023

Chief Justice of Pakistan Justice Qazi Faez Isa on Tuesday questioned how the Supreme Court (Practice and Procedure) Act 2023 could diminish the powers of the apex court.

He made the remarks as a full court resumed hearing pleas against the law which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. Like last time, the hearing is being streamed live on television.

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Key points:

• CJP Isa says court wants to try and conclude case today
• Lawyer Ikram Chaudhry argues an effort has been made to enter into an area not in Parliament’s domain
• “Is Parliament not competent to legislate in relation to access to justice?” asks Justice Minallah

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Headed by CJP Isa, the bench consisted of Justice ardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

In a pre-emptive move, the Supreme Court — then led by former CJP Umar Ata Bandial — in April had barred the government from implementing the bill seeking to curtail the chief justice of Pakistan’s powers once it became a law.

Earlier during the hearing, the CJP indicated that the SC may conclude proceedings on the petitions against the law.

Replies submitted to court​

On the very first day of assuming charge as the chief justice, CJP Isa had ordered the hearing to be live-streamed and had implicitly vacated the April 13 suspension of the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.

Though the court order did not explicitly say that the stay on the implementation of the law regulating the powers of the top judge had been vacated, Justice Isa stated he would consult with two senior-most judges Sardar Tariq Masood and Ijazul Ahsan regarding the formation of benches — a key clause in the law. Subsequently, the full court had asked the parties concerned to submit written replies before the next hearing.

Last week, the Pakistan Muslim League-Q (PML-Q) had pleaded before the apex court that the Act was aimed at promoting the independence of judiciary, the rule of law, and the right to access to justice and fair trial.

The party, represented by its counsel Zahid F. Ebrahim, said SC rules provided that the legislature could determine the practice and procedure of the court in relation to the constitution of benches, in particular. Parliament has the right to enact the subject legislation and has done so strictly in accordance with the law and the Constitution, the response said.

Meanwhile, the government had argued that if the Supreme Court (Practice and Procedure) Act 2023 was sustained, verdicts handed down by benches constituted before enactment of the law would be saved as past and closed transactions.

But if the benches are still hearing the cases, then such benches should be reconstituted by a committee of three most senior judges, said a reply filed by Additional Attorney General Chaudhry Aamir Rehman on behalf of the federal government.

Referring to a question put by the full court on Sept 18 that could a right of appeal against judgements arising out of Article 184 (3) be created through ordinary legislation, as opposed to a constitutional amendment, the government contended that the original jurisdiction of the apex court under the provision was sui generis in nature and it cannot be bifurcated into criminal and civil aspects.

Those aggrieved by judgements under Article 184 (3) may go for a review on the same grounds as are available for review of judgements rendered under Article 185, the reply said.

On the question of whether the regulation of practice and procedure by Parliament undermines the judiciary’s internal independence, the government stated that no restraint could be placed on the institution’s performance and operation. Independence of judiciary implies independence of judges, institutionally as well as individually, from the executive, the government further stated.

Today’s hearing​

At the outset of today’s hearing, CJP Isa said that the law affected the chief justice and the two senior most judges of the apex court. “On one hand, the CJP’s powers, if not being limited, are being reduced. On the other, the same powers are being distributed among senior judges,” he said.

Justice Isa said that the law would also apply to future chief justices and senior judges of the apex court. He said that he had felt that he should not be a part of the bench hearing the pleas but because it affected all judges, it was deemed fit that a full court preside over the case.

Addressing the lawyers gathered, he urged them to talk about points that were relevant to the case. “We want to try to conclude [the case] today,” he said as he highlighted the backlog of cases in the SC. He said that if the lawyers wished to make additional arguments, they could submit a detailed response to the court.

Starting his arguments, lawyer Ikram Chaudhry, representing petitioner Niazullah Khan Niazi, read out the opening paragraph of the Act. He argued that the paragraph indicated that the law was being enacted for a “certain or a specific purpose”.

However, CJP Isa interjected and asked whether the law stated this or the lawyer was implying this. “Let’s not put words in a statute which don’t exist. If that is your impression, then say so,” he remarked.

The lawyer then went on to Section 3 of the Act, which states that a committee of judges would constitute a bench to hear matters of public importance. He said that the clause was an “encroachment on the area which falls within the legal framework”.

Regarding the provision of appeal under the Act, the lawyer said that “additions” to Article 183 of the Constitution — which empowers the SC to entertain public interest litigation in its original jurisdiction — could only be made with a two-thirds majority in Parliament. He further said that Section 8 of the Act had “bulldozed the concept of the independence of the judiciary”.

“So an effort has been made to enter into an area which is not within Parliament’s domain,” Chaudhry said. “In a parliamentary system, parliament and the executive are one, the same phenomenon in the Constitution. They have a nexus amongst themselves,” he said.

He further said that the law was passed by a “truncated” Parliament, which did not have the authority to make constitutional amendments.

At one point, the lawyer argued that the enactment of the Act “totally denies the Constitution itself”. “When there is a wide law, [which is] fundamentally unconstitutional, it would be within the SC’s authority to look into it and declare it ultra vires,” he said.

At one point, CJP Isa asked, “When you talk about the independence of the judiciary, is it a unique thing or is it for the people and their rights? Is independence of the judiciary a standalone concept which should be defended under all circumstances?”

During the hearing, Justice Akhtar said that the question at hand was of legislative competence. “Not perhaps how ‘good’ or ‘bad’ this law is. The question that is perhaps agitating the petitioners […] is that is there legislative competence? If the answer is [yes], then the matter proceeds in one direction. But if the answer is that there is no legislative competence, then that ends the matter.”

Justice Akhtar said that the technical term used in constitutional law, for when the legislature tries to make a law beyond its competence, was a “fraud on the constitution”. “Those are very strong words,” he said as he again highlighted the question of legislative competence.

He referred to Section 7 of the Act, which states that an application pleading interim relief shall be fixed for hearing within 14 days from the date of its filing. “Now some may say this is a ‘good thing’. The question is can Parliament regulate SC down to this nitty gritty level? Is this what independence of judiciary and separation of powers is all about?”

At one point, however, CJP Isa highlighted the amount of time the lawyer was taking to present his arguments. “This case will not go on after today,” he said as he told the lawyer that he would have to spend the same amount of time listening to the other petitioners in the case.

During the hearing, Chaudhry said that Article 239 barred the government from making constitutional amendments without having a two-thirds majority.

Justice Ahsan then went on to say that Parliament was not competent to make the Act as it “essentially requires a constitutional amendment which is a totally different species of laws and which requires a totally different procedure which Parliament needs to adopt . And since that procedure has not been adopted it can be argued that Parliament was not competent to make this law which has the effect of amending the Constitution.”

“Yes, my lord. That’s my submission,” Chaudhry said.

Justice Minallah said that in his opinion, all the law did was to secure and ensure access to justice. “Is Parliament not competent to legislate in relation to access to justice? Providing an appeal is access to justice. Even regulating the chief justice’s powers is also an element of access to justice.”

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Chaudhry said that the legislation in question affected the independence of the judiciary and also completely regulated the internal workings of the court. He said that the Parliament had acted beyond its mandate as he concluded his arguments.

Lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, then took the rostrum. He started off by saying that the question at hand was of legislative competence. He said that the judiciary was one of the three pillars of the state.

Referring to Article 50, he said that it highlighted that it concerned the Majlis-i-Shoora. He said that the bill was sent to the president for his assent, who then raised an objection. The lawyer said that this indicated a “dispute” within Parliament over the passage of the bill.

Talking about Article 184(3), he argued that the law was replacing the SC’s function and transferring it to the committee, which “may not even be considered as a judicial function and would be an administrative function”.

“Are you contending that individually, chief justices cannot invoke this power and this power vests exclusively in the SC, which means the chief justice and all the judges of the SC?” CJP Isa asked.

Irfan said that the powers were given to the apex court which then drafted the SC rules. “The SC then delegated their own power as a whole to the chief justice,” he said.

Here, Justice Ahsan noted that Article 191 had empowered the SC to make rules that were administrative in nature, adding that the formation of benches and fixation of cases was an administrative power.

“So what the law does is, it removes the power from the chief justice and assigns it to two more judges, a committee of three judges,” he noted. Justice Ahsan said that in exercise of administrative powers the court could delegate its powers.

“That power has been exercised under Article 191 which is a constitutional mandate. So where a constitutional mandate empowers the SC to make rules, those rules have a certain sanctity attached to them,” Justice Ahsan said.

Article 191 reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.

The court then took a break in proceedings. When they resumed, Irfan continued his arguments and urged the court to review the “true purpose” of Article 184(3). He contended that the article did not state that a constitutional right had to be violated for an appeal to be filed. He then proceeded to read out the article out loud.

When asked which fundamental right the petitioner seeking was seeking to enforce, the lawyer responded that it was the right of access to justice.

Here, Justice Mazhar pointed out that the lawyer was referring to the part about public importance rather than fundamental rights. Justice Minallah then asked, “If the chief justice has exclusive rights, then access to justice is not affected?”

“It is his prerogative whether he fixes for hearing or not but he will not decide whether this petition should go for hearing or not, whereas this committee is going to decide [that],” the lawyer contended.

Here, CJP Isa asked Irfan about his interpretation of the new law. Justice Ahsan then remarked that the lawyer was “going into the nitty gritty of the law” when he first needed to answer what fundamental rights were being impacted by its passage.

He also observed that the full court hearing the case amid the petitioners’ and the government’s differing views proved that the case was a “maintainable petition”, hence, arguments on that aspect were not needed.

At one point, Justice Ayesha asked the lawyer if the absence of the right of appeal in the case of a full court barred the petitioner from access to justice. “Is this a substantive right that is being prevented?” she asked.

The lawyer replied that it did bar access to justice and said the solution was in Article 186, which would allow a full court to hear the case.

Irfan noted that the Constitution was the one thing supreme to both, the SC and the Parliament. The oaths for all offices have the words “preserve, protect and defend the Constitution” in common, he stated. The lawyer then proceeded to read out the oath for judges out loud.

When Irfan said that it was “equally incumbent upon the Parliament to follow the Constitution”, CJP Isa asked rhetorically, “Can there be two opinions on this?”

The top judge remarked that the lawyer touched upon one topic but then moved to the other without completing his arguments for the former. “I haven’t used my pen yet. I will write if I understand your arguments.”

When asked by Justice Mazhar whether Parliament had the competence to enact the law or not, Irfan answered in the negative. Upon being asked if the lawyer considered that the SC’s verdict on a matter should be final and not valid for appeal, Irfan replied that he did not think so.

Here, CJP Isa highlighted that lawyers and civil society had objected to the overuse of Article 184(3) in the past.

The lawyer then proceeded to argue that each time a new CJP would come to power, there would be no certainty of decisions and benches. At this, CJP Isa asked, “Do you want us to open the door for the next martial law?”

At one point during the hearing, CJP Isa observed that it needed to be ascertained whether the law pertained to the benefits of the people or to their loss rather than the benefits to the chief justice.

Here, Justice Akhtar noted that the apex court did not need the right to appeal in order to correct its past verdicts. He asked whether section 3 of the law was in direct conflict with Article 184(3).

Justice Shah then asked the lawyer if he thought the Parliament could legislate regarding the SC’s practice and procedures under Article 191 of the Constitution. To this, Irfan answered in the negative.

Justice Shah noted that Article 191 authorised Parliament to “go ahead with a legislation” about the practice and procedures of the SC, as well as when read with Article 58. He asked Irfan to explain how the said articles did not empower Parliament to do so, as the lawyer had contended.

“Until you don’t admit, there cannot be a correction,” CJP Isa said as he noted that prioritising the verdict of a bench could amount to a violation of the Constitution.

Multiple judges then asked the lawyer to elaborate the meaning of the words “subject to the Constitution and law” in the law empowering the SC to make rules, and whether it limited the apex court’s powers.

Here, Justice Akhtar pointed out a conflict in the Act that as per the lawyer, there could not be a repeal or an implied repeal but section 2 of the Act meant repealing of Order 8.

The judge then read out aloud Article 171 of the 1956 Constitution, which he said provided a “direct enabling grant” and had different language from today’s Constitution.

The lawyer argued that the committee was “preventing access to the Supreme Court directly and preventing the Supreme Court from making an order”.

Justice Akhtar then stated that the Parliament’s jurisdiction to legislate on SC matters, if it existed, came into being under the 1973 Constitution, noting that there was a “continuity perhaps” as the SC rules had already existed before but were just amended in 1980.

At this point during the hearing, Justice Minallah asked Irfan to cite any examples, if there were, from “any jurisdiction around the globe that give precedence to rules made by an unelected court over a primary legislation made by a competent forum”.

To this, the lawyer responded that the rules enacted would have to be within the Constitution.

Here, Justice Mandokhail asked the counsel whether the Constitution had placed any bar on the Parliament to make a law that was inconsistent with the SC rules. Irfan replied: “If there is no bar, there is no permission either.”

CJP Isa then remarked that the lawyer was simply answering in “yes or no” rather than presenting arguments for his stances. He proceeded to observe that the Act was not only regulating the Supreme Court’s practice and procedures as indicated in its name but also “creating a substantive right of appeal”.

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Here, Justice Ahsan asked the lawyer if providing the right to a fresh appeal meant “conferring the jurisdiction or enlarging” it. To this, Irfan replied that it was conferring the jurisdiction.

The top judge then remarked that the counsel was not providing proper answers to the questions, reminding him that he had taken too much time.

Lawyer Uzair Karamat Bhandari, representing the PTI, then began his arguments. He told the court that he had instructions to support the petitioners but “with some caveats”.

“I am not saying that Parliament, per se, cannot make any law as far as the practice and procedure of the SC is concerned. It can but that power is heavily circumscribed by various express and structural limitations within the Constitution,” he said.

Bhandari said that Parliament drew its legislative powers from Article 142 and a set of provisions in the body of the Constitution. He said that the question that arose whether Article 191 by itself was a source of legislative power.

“My submission on that is that it is not,” he said. The lawyer contended that the preamble of the law identified the source of legislative power which Parliament had invoked, namely Article 175(2) and Article 191.
Article 175(2) provides that no court will have any jurisdiction unless conferred on it by the Constitution or by under any law.

Bhandari then referred to Article 142. “So the legislative power is conferred with respect to identified subjects and the appropriate legislature is identified,” he contended.

“So you are saying Parliament does not have the power to legislate except items mentioned in the federal legislative list? Is this what you are saying,” CJP Isa asked.

“Yes,” the lawyer responded, adding that this also included what was mentioned in the body of the Constitution.

Giving an example, CJP Isa then said that under this argument Parliament could not legislate with regards to artificial intelligence, outer space and social media as they were not mentioned in the FLL or the Constitution. He urged the lawyer not to “paint broad strokes”.

During the hearing, Bhandari said that the rule-making power was a standalone and independent power of the SC. He said that Parliament could legislate in this regard but there were “limits” to this.

He contended that when it stated “subject to the law” in Article 191, in order to know what law could be made in this context, one would have to examine other provisions of the Constitution.

The lawyer said that under Entry 55, which outlined the scope of the jurisdiction and powers of the SC, there could only be an “enlargement of jurisdiction” when there was an express authorisation by or under the Constitution.

At one point, CJP Isa interjected and said, “I am trying to wrap my head around the fact that you keep saying its taking away the power. The first power was conferred by Parliament through the Constitution.

“That power is being enlarged. If this power was given to, for example the Senate of Pakistan […] then maybe yes, you are absolutely correct. But this power has not gone out of this building. It remains within the building […] so you’re saying that more minds will actually be destructive of the 184 inherent power?” he asked.

Justice Isa said that while the chief justice’s powers were being reduced, the powers of the apex court were increasing. “How are you saying they are being reduced,” he asked the lawyer.

The CJP said that if the courts were making laws, then it was “wrong”. “Their power is to interpret law. If a law violates some constitutional provisions, strike it down,” he said, adding that he didn’t feel as though the court’s powers had been taken away.

When the hearing resumed after a short break, Justice Minallah asked the lawyer that if Parliament enacted a law regarding data protection which was in conflict with the rules made by the SC under Article 191, would the rules prevail or the act?

“In that scenario, the rules will prevail because in order to make a law on data protection, which also provides for the practice and procedure of the SC, it (Parliament) also has to go through Entry 55. So the conditions of Entry 55 will have to be met which may not be possible in this case because there is nothing in the body of the Constitution […] which allows Parliament to make this law and authorises it to enlarge the jurisdiction,” Bhandari said.

He said that when there was an express statutory power by virtue of “an express matter in the Constitution”, then it was possible for Parliament to provide rules for practice and procedure but not otherwise.

The lawyer said that case law was clear the rules would prevail. He said that ex-premier Yousuf Raza Gillani was tried and convicted for contempt. “The trial was conducted by this honourable court,” he said.

“Here, it seems, that the procedure that their lordships [followed], was that laid down in the Contempt of Court Ordinance and not that laid down in the SC rules,” he said.

He argued that when Parliament enacted a law on a subject on which the Constitution expressly authorised it to enlarge the jurisdiction of the SC, then it could also prescribe rules for the court’s practice and procedure for that subject only.

He contended that the power to “regulate the exercise of the power of contempt” would include the power to frame a law which allowed for trial and creation of an appellate forum.

“This is exactly what has been done in the Practice and Procedure Act as well,” CJP Isa remarked.

However, the lawyer disagreed and said that there was nothing in Article 184(3) which stated that the power conferred under it could be regulated by law. He said that the power to regulate included the power to grant substantive right of appeal.

Justice Ahsan remarked that when there was a specific power conferred by the Constitution to frame a law, then that law could be framed and in that law an appeal could be provided. He noted that the Constitution may not specifically say that such law may provide for an appeal.

“It is inherent in it. Where the Constitution confers the power to frame a law on that particular subject, it gives you ancillary powers, which include the power to provide an appeal,” he observed.

However, in terms of Article 191, there is no power, he said. Justice Ahsan said that the power to frame rules was only conferred on the SC. He said that Entry 55, even if it was used standalone, “does not meet the muster”.

CJP said that if Parliament had been given the right to grant an appeal for Article 6 (high treason) and contempt, then the question that arose was that was giving an appeal wrong?

“If an appeal is given, what is wrong with that?” he asked. Justice Isa noted that the lawyer was appearing on behalf of a political party. He said that the arguments the lawyer made could also have been made in the adjoining building, a reference to Parliament House.

In response, Bhandari said that the decision to resign from the assemblies was a political decision.

At one point during the hearing, Justice Ayesha asked: “When we read the word law, how do we see which authority is competent whether it is the federation or province?”

Meanwhile, Bhandari mentioned previous instances where provinces had sent appeals to the SC without there being an act of Parliament.

“Bhandari sahab, isn’t it distinguishable because here the appeal is being provided against a judgement passed by the highest court while exercising its original jurisdiction … there is no other court above it. So it is actually securing the right of access to justice,” Justice Minallah highlighted.

However, the PTI lawyer argued that the question was of competence. “The province was not competent to legislate just as the Parliament is not competent, in its capacity, to provide an appeal for Article 184(3),” he said.

As Bhandari cited Article 175(1) to support his argument, the CJP asked if he was suggesting that the chief justice was omnipotent. Justice Isa gave what he called an “absurd example” of revoking Bhandari’s license and barring him from appearing court “in a fit of rage”.

“What can you do? Nothing … surely we are also human beings … I remain vulnerable and that’s what your mighty teaches us that you will make mistakes,” the top judge said.

He further stated that the lawyers themselves had pointed out that Article 184 was often used incorrectly and the Parliament saw this. “Therefore they gave a right of appeal.”

“You can raise a finger on the Parliament but you are quiet on the omnipotency of the chief justice,” Justice Isa said.

Meanwhile, Justice Ahsan remarked here that there could be instances where some SC judgements could be wrong. “But the policy of law is that there has to be a finality attached, if you keep giving appeals then it is an endless exercise which would deplete the entire purpose of the judicial system,” he said.

Here, the CJP said he both agreed and disagreed with Justice Ahsan to an extent. He highlighted that the concept of finality didn’t exist in the world without appeal.

Bhandari, for his part, said US SC had original jurisdiction. However, Justice Isa noted that there was difference that all the judges heard cases in the US. He also expressed frustration over repeated comparisons with the US.

During the hearing, Justice Isa said that the real question was whether Parliament could give a right to appeal or not.

Justice Ayesha also asked here: “If right of appeal is substantive, then how can a committee of three judges control that right?”

Bhandari replied that it highlighted the problem with the provision, adding that the administrative power was used to stultify the exercise of judicial power. “If the right of appeal has to be provided in every case … that means nine benches will always have been available to hear an appeal … the largest bench that can therefore be formed would be an eight-member bench.”

However, the CJP said Bhandari’s argument was “fundamentally flawed”. He also asked Bhandari what difference did it make “to a political party” and what gains or losses were they getting from it.

“It is not about benefit or loss, the only concern is … my client could be in power again, the history of our country teaches us this, so even then, I am under instructions to state that a parliament should never be allowed to do this,” the PTI lawyer said. However, he was cut short by the CJP who interjected that in cases such the one being currently heard, lawyers were supposed to assist the court.

“This is not your party’s right to give instructions,” Justice Isa said, adding that Bhandari was first and foremost an officer of the court.

For his part, the PTI lawyer recalled that physical attacks took place in this court and therefore “a firewall was formed to protect the judiciary”.

“We want to protect the Parliament as well,” the CJP said.

Separately, Justice Ahsan said: “Under the constitutional scale, each organ of the state has been provided the bar to make its own rules. The judiciary doesn’t make the rules of the Parliament or the executives. The judiciary makes its own rules.

“Only those rules made by the executive or other organs that are in conflict with the Constitution can be looked at by us and if we find that they are in conflict they are being struck down. So those three firewalls have been intentionally created by the Constitution and the interest of every citizen of the state is that they remain intact.”

He went on to ask how could a procedural law provide an appeal. “It can’t,” replied Bhandari.

Justice Akhtar also asked if it could be said that the rule-making power of the court and that of the Parliament extended over the same area under the subject matter.

“If it is used as an enabling provision, then yes,” Bhandari said. “If this is so, then how can the Parliament can use Article 191 to bring a substantive right to appeal?” Justice Akhtar questioned.

At one point during the hearing, Justice Isa highlighted that if, supposedly, he as the CJP became unreasonable and said no to calling a full court, “then nobody can do anything about it”.

“How will you resolve this? The Parliament has said that the CJP may not like it but we have made an intent to resolve it. Because your conduct has shown you are never going to do it,” he said and also asked if Islam permitted such a powerful body.

Justice Hilali also pointed out that “constitutional amendment was formed unconstitutionally”.

Meanwhile, Justice Minallah highlighted that Bhandari was representing a political party and could be in power in the future but did not repose trust in the Parliament.

“So, do you think it is a matter should have been in the first place taken up under Article 184(3) because everyone and kindly if you could come up with any example in any jurisdiction where a good law, that ensures justice, has been struck down by any court?” he asked.

Bhandari said the Indian SC did that in the advocate of record case in 2016, highlighted that a constitutional amendment was struck down because it violated the independence of judiciary.

However, Justice Minallah pointed out that the law under discussion was advancing the judicial independence.

Justice Isa, at one point, also asked Bhandari if his political party could commit to repealing the law if and when it came to power but the lawyer refused to do so.

Justice Minallah again asked Bhandari if the PTI supported the powers vested in the CJP and not three judges to which the lawyer said that he did not support that. “So it is a good law,” the judge said.

Bhandari contended that he didn’t believe the law was good and if the PTI came to power, it would advice it to come up with a better law.

 

[Ghazi52]

 

[Ghazi52]

So according to decision:

• Chief Justice cannot take Suo Moto action by himself (upheld) ---> So all future Chief Justices of supreme courts are neutered by Army.
• Chief Justice alone can no longer form the bench of judges to hear cases - So role of Khaki judges is enhanced ---> Win for army.

- The section about granting Nawaz Sharif appeals in Previous Suo Moto decision is repealed --> to make sure that PML(N) plays by Army's playbook.

 

[Ghazi52]

 

[Ghazi52]

Justice Shah questions changes to practice and procedure law​

• Calls the restructuring of the committee as unnecessary

BR
September 23, 2024

Supreme Court judge Justice Mansoor Ali Shah wrote to the SC Practice and Procedure Committee on Monday stating that he cannot participate until the full court ordinance is reviewed.

According to Justice Shah, the previous committee could have continued its work after the ordinance was issued.

He described the immediate restructuring of the committee as unnecessary and the inclusion of a preferred member as undemocratic and an “one-man show.”

Justice Shah also questioned the “lack of explanation” for the removal of Justice Munib Akhtar from the committee.

Justice Shah was not able to attend the meeting of the judges committee in Islamabad today. As a result of the judge’s absence, the meeting was adjourned early.

It was the first session after the federal government promulgated an ordinance to amend the Supreme Court (Practice and Procedure) Act 2023.

CJP Isa was supposed to preside over the meeting, which was held to decide the formation of benches for the cases to be heard next week.

Chief Justice Qazi Faez Isa nominated Justice Aminuddin Khan, who is at No 4 in seniority list of the Supreme Court judges, as the third member of the Committee constituted under the SC Practice and Procedure Act, 2023.

The federal government last week enacted the Supreme Court (Practice and Procedure) Amendment Ordinance, 2024, introducing a few changes in the Act 2023.

The changes have been made to the three-member judges’ committee of the apex court which decides on the formation of the SC benches and cases related to human rights.

Earlier, the committee comprised the chief justice and two senior-most judges of the Supreme Court, but the ordinance now allows the chief justice to nominate one member of the committee, from time to time.

A notification was also issued by the top court’s Registrar’s Office in this regard which stated that the senior puisne judge — Justice Mansoor Ali Shah — was also among members of the three-member committee. The sources said that the meeting of the judges’ committee is expected on Monday (September 23).